23 S.E. 216 | N.C. | 1895
When this case was here before (McNeill v. McBride,
The judgment against the guardian is now only presumptive evidence, which the surety is allowed to rebut if he can, and which his administrator is now seeking to do in the action pending in Cumberland County. The plaintiffs contend, however, that, though judgment should be obtained to ascertain the liability of the surety on the guardian bond before subjecting the real estate of the deceased surety or the proceeds thereof in the hands of his heirs at law, both remedies can be had in this action (The Code, sec. 267), and that if the venue should have been in Cumberland County, where the guardian resided and the bond was filed (The Code, sec. 193; Cloman v. Staton,
The court below therefore properly held that this action, (347) subsequently begun for the same purpose, could not be maintained (Claywell v. Sudderth,
No error.
Cited: Martin v. Buffaloe,